Kelly v Leonardo Employment Tribunal Thread 4

I have commented on the Sandie Peggie thread that the judgement in this case looks very appealable to me. I have been asked if I could outline here the areas I think are best appealable. It is hard to know where to begin!

Some thoughts:

• Whilst the Supreme Court judgement in FWS was not about toilets, nor does it mention toilets. However, the SC was clear that some provisions require a biological interpretation of sex. They specifically stated that this included changing rooms. It is therefore hard to see how toilets are an exception.
• The SC was clear that "women plus trans women" is unworkable for provision of services, and that therefore provision is either mixed sex or it is for biological men or biological women. This judgement ignores that completely.
• The judge dismisses the idea that women can, in general, tell that a trans woman is actually a man with no apparent basis for doing so.
• The judge decided that Croft means that any man with a GRC can use the female facilities, ignoring the fact that the SC said that this would undermine privacy and decency between the sexes.
• Even if she was right about this, it is clear from Croft that a man without a GRC is not entitled to use the female facilities, and yet her judgement allows men to self-identify into the female facilities.
• She says that Croft decided that a trans woman who had completed 2 years of living as a woman had a right to use the female toilet. Croft said no such thing. The judgement said that Croft, having only just started living as a woman, did not have the right to use the female toilet. It did no say that he would gain that right after 2 years.
• Her reading of Croft is highly selective. For example, she quotes part of paragraph 56 in support of her position, ignoring the fact that it says, "ordinary good practice requires, as it seems to us, that an employer is to be expected to require those who are, or who are believed by him to be, at law males to use only the men’s facilities and those who are at law or who are believed by him to be females to use only the women’s".
• She misrepresents the provisions of the Workplace Regulations regarding disabled toilets, inventing a problem that does not exist. There is no requirement to control access to prevent use by individuals who are not disabled, and the employer in this case does not control access.
• The judge decided that, since women were only 20% of the workforce and only one woman had complained, the rights of the men should prevail. That isn't how the Equality Act works. If there had been racial discrimination but only one black person complained, would she have used that as justification to dismiss the complaint?
• She says, probably correctly, that the requirement to control access to the women's facilities is limited to what is reasonably practicable, then decides, without any apparent justification, that it is not reasonably practicable for an employer to set rules based on biological sex and expect employees to follow them.

There is plenty more I could say, but that is my starter for ten. I will be surprised if this judgement survives appeal. Much of it appears indefensible to me. Of course, in the wider picture that is a good thing as an EAT judgement is binding on Employment Tribunals, but Maria Kelly should not have to go through this.

“Why separate provision is better for both sexes (safety data, crime stats, toilet design)”

Only one of these is measurable and that’s toilet design as the toilets are at the moment.
There’s no safety data and crime statistics. I have too short a list* and even then it’s difficult knowing what the toilet looks like or did look like at the time of assault/rape/death.

edit: it’s bloody depressing trailing through and creating a list it could be much longer if I put more time into it. Also I know now that provision is more venue based it’s almost impossible as no one is keen to publish bad or close-call stories.

It says on the trans page that the guidance has been produced with support from LEAP Scotland and the Equality Network.

Who would have written that guidance?

Wasn’t that the second tribunal hearing rather than the EAT? The EAT overturned the Tayler judgment and the tribunal was heard a second time, where she won.

Looking it from a different perspective, does anyone else wonder if Leonardo UK is also thinking that the decision is bad news? 😁

They probably wanted the whole damn thing over, and to have the tribunal 'force' them to end the madness that most of them will never have had a heart for in the first place.

Now they have the expense and upheaval of an appeal to deal with. All entirely sef-inflicted as noone forced them to submit a defence. But I wonder if Andy Letton isn't crying and cursing into his whiskey tonight, over that Michelle has done to him with the surpride 'good news'.

As a comparator, she and her partner do seem to be volunteer Surf Mom and Dad, eg from this much longer (!) older 2018 post here, in which they still undertake quite a bit of organisation work.

But in the Trustee roles, MS seems to have much stronger leadership/management roles (would be better perhaps if she recognised the difference and stuck to the intended governance roles!)

True

Better move to North Berwick, have a child of appropriate age and crowdfund! 🤩

I don’t think people are thinking appeal on the basis of bias, more looking for reasons for this apparently biased judgement.

However, if they do have a policy of trans identified men using the women’s facilities then MS could be sued for discrimination as chair of the organisation on precisely the point she has made this judgement on.

Just to say that this is about changing rooms. UK Athletics rules apply so if you are competing at a particular level you need to be in your biological sex category.
Trans identifying men won't be competing with the girls if it goes to qualification.

Agreed - judicial bias wouldn't be the limb I'd appeal on. The actual poor quality and failure to apply the law would make more of an impact.....

The EAT could also decide that the ET erred in law, but even under the correct interpretation of the law the claim is also dismissed.

I certainly don't think its clear cut but it would be interesting to know if she has discussed the possibility with her President, or declared it to the parties, to allow for any objections to be raised.

It's not so much that she stands to gain from adopting those policies in her leadership roles. Arguably, eg TWAW policies could even bring the females in her own family lower down in sporting league table rankings. But if the organisations are already steeped in gender identity woo, and given that she has such strong attachments to the organisations and activities, then arguably she might feel there is a lot at stake for the Judge who makes a pivotal decision on a relevant case. And that might influence the decision making process unduly.

Equally she may be very strong minded and fully believe in the decision, as a judgement independent of her other roles.

We can't know, but, for propriety's sake, hopefully she thought all this through some time ago and acted as necessary to satisfy herself that discussions like this wont gain traction.

So to validate thinking - MS is a Chairperson of this organsisation.

Per OSCR https://www.oscr.org.uk/about-charities/search-the-register/charity-details?number=SC045501

6.6 To affiliate to the governing body of athletics, namely Scottish Athletics Ltd (SAL), and comply with and uphold the Rules and Regulations of both SAL and UK Athletics

So therefore as the directing mind of this organisation which has chosed to affiliate and adopt the rules and regulations of these entities - this makes the Club entirely 'trans-inclusive'.

https://www.scottishathletics.org.uk/about/equality/

https://www.scottishathletics.org.uk/wp-content/uploads/2021/09/Equality-Guidance-For-Clubs-Sept-2021-FINAL.pdf - therefore this document applies to the Club. (Page 30/58) Support the trans person with their choice of changing facilities where possible – a conversation should be had around where this person feels most comfortable changing.

So at the club which Michelle Sutherland chairs - she is familiar with the process that you support the trans person - and they choose where they feel most comfortable changing. More than someone who drives their kid to football in a minivan.

I agree we dont know, but thought it was worth raising it because it may indicate bias. Not saying that she is necessarily leading either of the organisations wilfully down that path, but as Chair of one and long serving Trustee of other, she is in roles with responsible for oversight of policies that do seem to align somewhat with her (faulty) thought process around SC judgement.

I read guidance to Scottish judges earlier, and although unpaid trustee roles like this are permitted, it is suggested Judges could consult the President if there is a possibility of perceived conflict of interest/apparent bias. Judges also shouldn't recuse themselves without v good reason. I think another option is to declare roles/involvement to both sides in advance, to allow for objection before tribunal takes place, and that may have happened already, we dont know.

I think it likely that both roles are an important part of the J's personal/family life, and so it's unlikely she's unaware of the policies.

The Fidra charity puts emphasis on taking a "pragmatic, collaborative" approach to its environmental work. Being pragmatic and collaborative can be a smart way to get on with people and achieve good things in the world
. It can also be a way of satisfying personal as well as public agendas, which is why checks and balances are needed, I think.

It could, but as a pp said the EAT could decide:

• it was a perverse decision
• the original judgement is upheld
• the original decision erred in law and this is the judgement.

Maya’s initial ET didn’t get that far as there was a preliminary hearing where her belief was found not to be WORIADS. Then that was overturned at EAT, then she had her full tribunal hearing which she won as we all know.

Hey no beef - if we can’t rebut with evidence then it’s worthless research anyway!

Best to be challenged and consider all thoughts.

OK, I admit you and Legobricksinatub are 100% right about her being high up in the athletics club; but we don't know, do we, whether or not that club has actually adopted trans inclusive policies?

Sometimes things just don't seem right to me and I raise an issue, 'hang on a minute..', and if I'm contradicted and proved wrong, that's fine.

I feel bad, though, if somethings doesn't feel right and I don't say 'hang on a minute...'

It's never to be argumentative for the sake of it

Could that happen with Maria's case?

That isn’t what happened. The EAT decided the point of law then required the ET to be re-heard. It was the second ET that had witnesses etc not the EAT.

She is the Chairperson. I know if I was Chairperson of an organisation I wouldn't adopt trans inclusive policies so that trans identified males would then race against girls.

As trustee and chairperson she would be responsible for overseeing the implementation of such policies, not merely a passive observer.

Maybe she just volunteers at her kids' athletic club.

Maybe like an awful lot of clubs and associations these days, the club has incorporated genderwoo into its rules and regs [though we're not even sure that East Lothian athletics club has done so].

I doubt if she chose her kids' athletic club on the basis of their pro-trans policy - if it has a pro-trans policy.

I don't think that indicates a bias/conflict of interests, it may just mean she's the athletics equivalent of a soccer mom

@NebulousSupportPostcard - I have the link - daugher Thomson is named here and a key athlete at Team East Lothian

https://teameastlothian.org.uk/2022/01/17/medal-haul-at-east-district-champs/

So I'd say one and the same

An appeal can be made against an Employment Tribunal's ruling on the grounds that its decision was perverse.

An Employment Tribunal is said to have made a 'perverse decision' if it reached a conclusion that is irrational, and no other reasonable Employment Tribunal would have come to the same conclusion.

Appeals on this basis are very rare, as it would (hopefully) be extraordinarily unusual for a Judge to make a decision that is so wrong it makes no sense.

I would argue that this could be such a very rare case. The written judgement is so bizarre. And it seems littered with personal views outside of, and in some cases conflicting with the law itself.